The one court that congress cannot take away: Singularity, supremacy, and article III

Georgetown Law Journal

Volumn 96, Issue 1, 2007, Pages 59-121

  Claus, Laurence ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 37149021961     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (413)

1. U.S. CONST. art. III § 1; § 2 cls. 1-2: § 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. § 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; - to all Cases affecting Ambassadors, other public Ministers and Consuls; - to all Cases of admiralty and maritime Jurisdiction; - to Controversies to which the United States shall be a Party; - to Controversies between two or more States; - between a State and Citizens of another State; - between Citizens of different States; - between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
2. See Jesse Choper & John Yoo, Wartime Process: A Dialogue on Congressional Power To Remove Issues from the Federal Courts, 95 CAL. L. REV. (forthcoming 2007) (discussing the jurisdiction-stripping statutes at issue in Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) and Lauf v. E.G. Shinner, 303 U.S. 323 (1938)).
3. United States v. Carolene Prod., 304 U.S. 144, 152 n.4 (1938).
4. Detainee Treatment Act of 2005, Pub. L. No. 109-48, § 1005(e) & (h), 119 Stat. 2680, 2742-43.
5. 126 S. Ct. 2749, 2762-69 (2006).
6. Military Commissions Act of 2006, Pub. L. No. 109-366, § 7, 120 Stat. 2600, 2635-36.
7. Id. § 7(b).
8. 476 F.3d 981, 988-94 (D.C. Cir. 2007).
9. Boumediene v. Bush, 127 S. Ct 1478 (2007).
10. Boumediene v. Bush, 127 S. Ct 3078 (2007).
11. Pledge Protection Act of 2005, H.R. 2389, 109th Cong. § 2 (as passed by House, July 19, 2006);
12. Pledge Protection Act of 2004, H.R. 2028, 108th Cong. § 2 (as passed by House, Sept. 23, 2004) (purporting to eliminate the Supreme Court's jurisdiction to determine the constitutionality of the Pledge of Allegiance as defined in 4 U.S.C. § 4 or of that pledge's recitation);
13. see also Constitution Restoration Act of 2005, H.R. 1070, 109th Cong. § 101 (as introduced in House, Mar. 3, 2005) (purporting to eliminate the Supreme Court's jurisdiction to determine the constitutionality of government actors' "acknowledgment of God as the sovereign source of law, liberty, or government").
14. Marriage Protection Act of 2004, H.R. 3313, 108th Cong. § 2 (as passed by House, July 22, 2004);
15. see also Marriage Protection Act of 2005, H.R. 1100, 109th Cong. § 2 (as introduced in House, Mar. 3, 2005).
16. See, e.g., Human Rights Act, 1998, c.42, §§ 4, 10 and Schedule 2 (U.K.) (judicial declarations of incompatibility between legislation and the European Convention on Human Rights trigger ministerial discretion to amend the legislation, subject to eventual Parliamentary resolutions approving amendments so made).
17. Cf. Canadian Charter of Rights and Freedoms, § 33 (Constitution Act, 1982, Part I § 33 (Canada), being Schedule B to the Canada Act, 1982 (U.K.)) (Canadian legislatures may for renewable five-year periods provide for legislation to operate notwithstanding provisions in § 2 or §§ 7 to 15 of the Charter).
18. See Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 MICH. L. REV. 245, 282-83 (1995).
19. See generally Laurence Claus, Montesquieu's Mistakes and the True Meaning of Separation, 25 OXFORD J. LEGAL STUD. 419 (2005).
20. See discussion infra Part II.
21. U.S. CONST. amend. VII: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
22. See discussion infra Parts II, IV.
23. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 124 (Max Farrand ed., rev. ed. 1966) (1911) (Madison's notes, June 5, 1787) [hereinafter RECORDS].
24. Id.
25. See United States v. Klein, 80 U.S. (13 Wall.) 128, 145-48 (1872) (holding that Congress may not exercise its Exceptions power in such a way as to "prescribe rules of decision to the Judicial Department of the government in cases pending before it,"
26. id. at 146).
27. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514-15 (1869) (holding that a congressional Act effectively deprived the Court of jurisdiction to decide the case, because Congress possesses "the power to make exceptions to the appellate jurisdiction of this court").
28. Henry M. Hart, Jr., The Power of Congress To Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1365 (1953).
29. Leonard G. Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157, 201 (1960).
30. U.S. CONST. art. I, § 1.
31. U.S. CONST. art. II, § 1.
32. U.S. CONST. art. III, § 1.
33. See, e.g.. Town of Castle Rock v. Gonzales, 545 U.S. 748, 759-62 (2005) (finding that a Colorado law's use of "shall" should not be interpreted to deprive police officers of enforcement discretion).
34. On the textual case for understanding Article III in the way that this Article proposes, see also the important insights in Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 COLUM. L. REV. 1002 (2007).
35. See also Laurence Claus, Constitutional Guarantees of the Judiciary: Jurisdiction, Tenure, and Beyond, 54 AM. J. COMP. L. 459, 460-76 (2006).
36. See James E. Pfander, Jurisdiction-Stripping and the Supreme Court's Power To Supervise Inferior Tribunals, 78 TEX. L. REV. 1433, 1455 n.88 (2000).
37. U.S. CONST. art. III, § 1: "The Judges, both of the supreme and inferior Courts, shall hold their offices during good Behaviour ...."
38. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420-21 (1819).
39. U.S. CONST. art. I, § 1.
40. U.S. CONST. art. II, § 1.
41. U.S. CONST. art. III, § 1.
42. Id.
43. See discussion infra Part I.A. 1.-2.
44. U.S. CONST. art. VI, § 2.
45. 1 RECORDS, supra note 19, at 21 (Madison's notes, May 29, 1787).
46. Id. at 124 (Madison's notes, June 5, 1787).
47. Id. at 95 (Journal, June 4, 1787);
48. id. at 104-05 (Madison's notes, June 4, 1787).
49. U.S. CONST. art. I, § 8, cl. 9.
50. See Plaut v. Spendthrift Farm, 514 U.S. 211, 227 (1995) ("The decision of an inferior court is not (unless the time for appeal has expired) the final word of the [judicial] department as a whole.").
51. Id.
52. See Pfander, supra note 30, at 1455-56;
53. James E. Pfander, Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Powers, 101 COLUM. L. REV. 1515 (2001) [hereinafter Pfander, Original Jurisdiction];
54. James E. Pfander, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 NW. U. L. REV. 191, 212-13 (2007) [hereinafter Pfander, Federal Supremacy];
55. see also Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 COLUM. L. REV. 324, 353-54 (2006).
56. "The Congress shall have Power ... To constitute Tribunals inferior to the supreme Court. . . ."
57. U.S. CONST. art. III, § 2, cl. 1.
58. See Pfander, Federal Supremacy, supra note 45, at 212-13. "Congress constitutes the state courts as tribunals 'inferior to' the Supreme Court under Article I by empowering them to entertain federal claims."
59. Id. at 231.
60. Pfander considers an array of recent congressional bills that aspire to strip federal courts of jurisdiction to decide particular Article III issues. He characterizes those bills as effectively conferring on state courts exclusive jurisdiction to decide those issues. He then argues that those measures, though they do not refer to state courts, "should be regarded as constituting the state courts as federal tribunals within the meaning of Article I."
61. Id. at 237. This conclusion does not protect the institution of judicial review from federal measures that aspire to strip all courts of jurisdiction to decide particular Article III issues.
62. Cf. Military Commissions Act of 2006, § 7.
63. 1 RECORDS, supra note 19, at 21 (Madison's notes, May 29, 1787).
64. See Evan Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 828-38 (1994).
65. Id. at 835.
66. 163 U.S. 537 (1896) (overruled by Brown v. Board of Education, 347 U.S. 483 (1954)).
67. Caminker, supra note 51, at 869 ("If an inferior federal court is convinced that the current Supreme Court would have eschewed stare decisis, then the court should feel free to disregard the precedent").
68. Id. at 865-66.
69. 1 RECORDS, supra note 19, at 95.
70. Caminker, supra note 51, at 866-67 (summarizing reasons for federal district court deference to circuit court precedents).
71. 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *57 [hereinafter COMMENTARIES] (describing the House of Lords as "the supreme court of judicature in the kingdom").
72. Id. at *41 (describing the Court of King's Bench as "the supreme court of common law in the kingdom").
73. Id. at *4 ("On the Study of the Law").
74. See U.S. CONST. pmbl.
75. Cf. David E. Engdahl, What's in a Name? The Constitutionality of Multiple "Supreme" Courts, 66 IND. L.J. 457, 462 (1991) (arguing against "[t]he proposition that the Constitution mandates a single forum of ultimate recourse in disputes as to national (including constitutional) law," relying in part on institutional precedents in England and in the American states (emphasis in original));
76. Michael L. Wells & Edward J. Larson, Original Intent and Article III, 70 TUL. L. REV. 75, 104 (1995) ("The concept of having a single 'supreme court' with final appellate authority, as provided for in the federal Constitution, represented a novel departure from established precedent").
77. See Judiciary Act of 1789, 1 Stat. 73, §§ 11-12.
78. 1 RECORDS, supra note 19, at 21 (Madison's notes).
79. Cf. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1176 n.115, 1180 n.139 (1992) (considering the possible "precedential authority" and "general jurisdiction" connotations of "supreme").
80. See JOSEPH STORY, 1 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, bk. III ch. IV § 375 (1833) ("[W]here the question is of a different nature, and capable of judicial enquiry and decision ... there is a final and common arbiter provided by the constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union.").
81. See Akhil Reed Amar, Article III and the Judiciary Act of 1789: The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. PA. L. REV. 1499 (1990) [hereinafter Amar, The Two-Tiered Structure];
82. Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205 (1985) [hereinafter Amar, A Neo-Federalist View].
83. 2 RECORDS, supra note 19, at 186 (Madison's notes).
84. Id. at 183-85.
85. Id. at 401.
86. Id. at 576.
87. Id. at 430 (Madison's notes).
88. Cf. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 328-336 (1816) (suggesting that Article III might vest jurisdiction over some matters exclusionary in the federal judiciary, and thus call for inferior federal courts to the extent that those matters do not fall within the Supreme Court's original jurisdiction).
89. See generally Luther Martin, The Genuine Information, delivered to the Legislature of Maryland, 1788 (expanded version of his Nov. 29, 1787 address to the legislature), in 2 HERBERT J. STORING, THE COMPLETE ANTIFEDERALIST 69-70 (1981);
90. A [Maryland] Farmer, No. 6 (Apr. 1, 1788), in 5 STORING, supra, at 53-54;
91. THE FEDERALIST NOS. 81 & 82 (Alexander Hamilton);
92. James Wilson, Pennsylvania ratifying convention (Dec. 7, 1787), in JONATHAN ELLIOT, 2 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 481 (1836) [hereinafter ELLIOT'S DEBATES] (suggesting exclusive federal jurisdiction);
93. id. at 491 (suggesting concurrent federal-state jurisdiction); John Marshall, Virginia ratifying convention (June 20, 1788), in 3 ELLIOT'S DEBATES, at 554;
94. Samuel Johnston, North Carolina ratifying convention (July 28, 1788), in 4 ELLIOT'S DEBATES, at 141;
95. Letter from Timothy Pickering to Charles Tilinghast (Dec. 24, 1787), in 2 CHARLES W. UPHAM, THE LIFE OF TIMOTHY PICKERING 366-67 (1873).
96. See also Fisher Ames in debate over the Judiciary Bill, (Aug. 29, 1789) in 1 ANNALS OF CONG. 839 (1834) ("[O]ffences against statutes of the United States, and actions, the cognizance whereof is created de novo, are exclusively of federal jurisdiction.").
97. Cf. James Madison, James Jackson, William Loughton Smith, Elbridge Gerry, and Samuel Livermore in the same debate, in 1 ANNALS OF CONG. 812-66;
98. Gouverneur Morris in the United States Senate (Jan. 14, 1802), in 11 ANNALS OF CONG. 86 (1851) ("That the original jurisdiction of various subjects being given exclusively to [inferior federal courts], it became the bounden duty of Congress to establish such courts.");
99. Alexander Hamilton, The Examination No. 6 (Jan. 2, 1802), in 25 THE PAPERS OF ALEXANDER HAMILTON 488 (Harold C. Syrett et al. eds., 1977) ("[T]he right to employ the agency of the State Courts for executing the laws of the Union, is liable to question, and has, in fact, been seriously questioned.").
100. Cf. Amar, A Neo-Federalist View, supra note 67, at 240 n.119 ("Arguably, federal courts must have the power to hear at least some min[u]scule subset of cases in each of the last six categories; the use of the plural, "Controversies," suggests that "the judicial Power shall extend to [at least two] Controversies" in each category. As any such restriction on congressional power would be both trivial and practically unenforceable, I shall for expository ease follow the principle de minimis non curat lex, and speak as if Congress could abolish all jurisdiction in these categories.");
101. John Harrison, The Power of Congress To Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. CHI. L. REV. 203, 243-44 (1997) ("It is impossible to imagine any reason for setting a floor on the controversy- denominated jurisdictions where [Amar's two-tier] theory sets it. Why, for example, require that at least two lawsuits in which the United States is a party be within the jurisdiction of the federal courts?")
102. See, e.g., 1 ANNALS OF CONG., supra note 74, at 827 (Samuel Livermore, Aug. 29, 1789).
103. Guaranty Trust Co. v. York, 326 U.S. 99, 101-02 (1945).
104. ARTHUR E. SUTHERLAND, THE LAW AT HARVARD: A HISTORY OF IDEAS AND MEN 25 (1967).
105. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518,533(1928).
106. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
107. Note, however, the suggestion that "all cases" embrace both civil and criminal matters, while "controversies" refer only to civil litigation. See, e.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431-32 (1793) (Iredell, J.) ("[I]t cannot be presumed that the general word 'controversies' was intended to include any proceedings that relate to criminal cases."). See generally Harrison, supra note 75;
108. Daniel J. Meltzer, The History and Structure of Article III, 138 U. PA. L. REV. 1569 (1990).
109. Cf. Judiciary Act of 1789 § 13 (providing for the Supreme Court to exercise exclusively such jurisdiction of proceedings against diplomats or their staff "as a court of law can have or exercise consistently with the law of nations").
110. See United States v. Lawrence, 3 U.S. (3 Dall.) 42 (1795).
111. A student participant in Georgetown University Law Center's Advanced Constitutional Law colloquium, R. Stanton Jones, aptly noted in response to an earlier draft of this Article that Article III's paragraphing counts against a jurisdiction-stripping interpretation of Congress's Exceptions power. Had the power been designed to divest rather than to distribute, it would have been mentioned in the paragraph of Article III that vests the judicial Power in specified courts or in the paragraph that extends the judicial Power to specified classes of matter. Instead, the Exceptions power appears in a separate paragraph that distributes matters between the one supreme Court's original and appellate dockets. As Mr. Jones observed: "A paragraph break signals a change in subject matter, and it plainly appears that the subject matter of Art. III, § 2, cl. 2 is the division of the one supreme Court's jurisdiction between original and appellate."
112. U.S. CONST. art. III, § 2, cl. 2 (emphasis added).
113. Cf. William S. Dodge, Note, Congressional Control of Supreme Court Appellate Jurisdiction: Why the Original Jurisdiction Clause Suggests an "Essential Role," 100 YALE L.J. 1013, 1025-27 (1991) (discussing Alexander Hamilton's explanation of the original jurisdiction clause as reflecting a concern for "preserving the peace").
114. See U.S. CONST. art. I, § 9, cl. 2.
115. "Could there be a more favorable or eligible provision to avoid controversies with foreign powers? Ought it to be put in the power of a member of the Union to drag the whole community into war? As the national tribunal is to decide, justice will be done." 3 ELLIOT'S DEBATES, supra note 74, at 533-34 (James Madison, Virginia ratifying convention, June 20, 1788).
116. The term "legislative" is here used as a synonym for "congressional," that is, in an institutional, not an essentialist, sense. See Claus, supra note 15, at 442-45.
117. U.S. CONST. art. I, § 8, cl. 9.
118. 1 RECORDS, supra note 19, at 21 (Madison's notes).
119. Cf. James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643, 677-85 (2004) (discussing evidence for distinction between Article III courts and Article I tribunals).
120. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 432 (1793) (Iredell, J.);
121. see also Patrick Henry, Virginia ratifying convention (June 20, 1788), in 3 ELLIOT'S DEBATES, supra note 74, at 540-41;
122. David E. Engdahl, Intrinsic Limits of Congress's Power Regarding the Judicial Branch, 1999 B.Y.U. L. REV. 75, 119-32.
123. See Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 291-326 (1993) (contending that the Necessary and Proper Clause does not authorize laws that would compromise the structure for which the Constitution itself provides).
124. See, e.g., U.S. CONST. art. II, § 3.
125. DENZIL HOLLES, 1ST BARON HOLLES, THE CASE STATED CONCERNING THE JUDICATURE OF THE HOUSE OF PEERS IN POINTS OF APPEALS 45 (1675).
126. ROBERT STEVENS, LAW AND POLITICS: THE HOUSE OF LORDS AS A JUDICIAL BODY, 1800-1976, at 6 (1978);
127. cf. Appellate Jurisdiction Act, 1876, 39 & 40 Vict., C.59. § 4 (U.K.) ("Every appeal shall be brought by way of petition to the House of Lords, praying that the matter of the order or judgment appealed against may be reviewed before Her Majesty the Queen in her Court of Parliament, in order that the said Court may determine what of right, and according to the law and custom of this realm, ought to be done in the subject-matter of such appeal.");
128. id. § 11 ("[A]n appeal shall not lie from any of the courts from which an appeal to the House of Lords is given by this Act, except in manner provided by this Act, and subject to such conditions as to the value of the subject-matter in dispute, and as to giving security for costs, and as to the time within which the appeal shall be brought, and generally as to all matters of practice and procedure, or otherwise, as may be imposed by orders of the House of Lords.").
129. See 3 COMMENTARIES, supra note 58, at *454;
130. JAMES S. HART, JUSTICE UPON PETITION: THE HOUSE OF LORDS AND THE REFORMATION OF JUSTICE 1621-1675, at 3-4, 18-19, 36-37, 224, 260 (1991); STEVENS, supra note 96.
131. See 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 3-5, at 273 (3d ed. 2000).
132. U.S. CONST. art. III, §2, cl. 2.
133. Congress has provided for the constitutional default of discretionary review in 28 U.S.C. §§ 1254, 1257. For provenance, see the Circuit Court of Appeals Act of 1891 (the Evarts Act), 26 Stat. 826, providing for discretionary Supreme Court review on writ of certiorari.
134. See 1 RECORDS, supra note 19, at 21-22, 244, 292;
135. RECORDS, supra note 19, at 600.
136. See 2 RECORDS, supra note 19, at 85, 132-133.
137. Id. at 85 (Journal).
138. Id. at 147.
139. Id. at 173.
140. 2 RECORDS, supra note 19, at 186-87 (Madison's notes).
141. Id. at 425 (Journal), 431 (Madison's notes).
142. Id. at 424-25.
143. Id.
144. See Letter from Gouvernour Morris to Timothy Pickering (Dec. 22, 1814), in 3 RECORDS, supra note 19, at 420.
145. Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. CHI. L. REV. 443, 465 (1989) (emphasis in original).
146. Id.
147. 2 RECORDS, supra note 19, at 431 (Madison's notes).
148. Id.
149. Id. at 551-52 (September 8, 1787) (Madison's notes).
150. See 3 ELLIOT'S DEBATES, supra note 74, 555-56 (John Marshall, Virginia ratifying convention, June 20, 1788);
151. U.S. CONST. amend. XI (adopted in response to the Supreme Court's contrary conclusion in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)).
152. See Judiciary Act of 1789, 1 Stat. 76-77, 80-81, §§ 9, 13.
153. See also discussion infra Section II.D.
154. See United States v. Ravara, 27 F. Cas. 713 (C.C. Pa. 1793) (No. 16,122).
155. See Bors v. Preston, 111 U.S. 252 (1884); Ames v. Kansas, 111 U.S. 449, 469 (1884) (holding that Congress may validly invest inferior courts with concurrent original jurisdiction over matters that fall within the Supreme Court's constitutionally-specified original jurisdiction).
156. 19 U.S. (6 Wheat.) 264, 392-403 (1821).
157. See Judiciary Act of 1789, 1 Stat 85-86, § 25.
158. Charles Black, The Presidency and Congress, 32 WASH. & LEE L. REV. 841, 846 (1975).
159. See also CHARLES BLACK, DECISION ACCORDING TO LAW 37-39 (1981);
160. Paul M. Bator, Congressional Power Over the Jurisdiction of the Federal Courts, 27 VILL. L. REV. 1030, 1041 (1982);
161. Charles E. Rice, Congress and the Supreme Court's Jurisdiction, 27 VILL. L. REV. 959, 984-85 (1982).
162. See Claus, supra note 15, at 429-30, 447.
163. Id. at 429.
164. THE FEDERALIST No. 81 (Alexander Hamilton).
165. See Letter from John Marshall to Samuel Chase (Jan. 23, 1804), in 3 ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL 176-77 (Houghton Mifflin 1919).
166. A minority of scholars have agreed that the Exceptions power lets Congress switch the route by which cases come to the Supreme Court, but even fewer have suggested that the Exceptions power might extend to nothing else. See William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 31-33
167. (cf. William W. Van Alstyne, Antinomial Choices and the Role of the Supreme Court, 72 IOWA L. REV. 1281, 1294 (1987));
168. LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 81 (1988);
169. Barry Friedman, A Different Dialogue: The Supreme Court, Congress and Federal Jurisdiction, 85 NEV. U. L. REV. 32 n. 177 (1990);
170. Wythe Holt, "To Establish Justice": Politics the Judiciary Act of 1789, as the Invention of the Federal Gov, 1989 DUKE L.J. 1421, 1509;
171. see also WILLIAM W. CROSSKEY, 2 POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1041-42 (1953);
172. GEORGE LEE HASKINS & HERBERT A. JOHNSON, 2 HISTORY OF THE SUPREME COURT OF THE UNITED STATES 201 (1981) (citing evidence, in particular from the submissions of counsel in Marbury, 5 U.S. (1 Cranch) at 148-49, that the pre-Marbury Court understood the Exceptions power to permit route-switching);
173. Edward S. Corwin, Marbury v. Madison and the Doctrine of Judicial Review, 12 MICH. L. REV. 538, 540 (1914);
174. Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. PA. L. REV 741, 778 (1984).
175. David P. Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U. CHI. L. REV. 646, 654 (1982).
176. See, e.g., Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 330 (1816);
177. Ex parte Yerger, 75 U.S. (8 Wall.) 85, 97 (1869);
178. cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).
179. See BLACK, supra note 122, at 37-39 (1981);
180. MARTIN H. REDISH, FEDERAL J URISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 24-45 (2d ed. 1990);
181. Akhil Reed Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. PA. L. REV. 1651 (1990);
182. Amar, The Two-Tiered Structure, supra note 67;
183. Bator, supra note 122;
184. Theodore Eisenberg, Congressional Authority To Restrict Lower Federal Court Jurisdiction, 83 YALE L.J. 498 (1974);
185. Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895 (1984);
186. Harrison, supra note 75;
187. Hart, supra note 23;
188. Vicki C. Jackson, Introduction: Congressional Control of Jurisdiction and the Future of the Federal Courts-Opposition, Agreement, and Hierarchy, 86 GEO. L.J. 2445 (1998);
189. James S. Liebman & William F. Ryan, "Some Effectual Power:" The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 COLUM. L. REV. 696 (1998);
190. Meltzer, supra note 81;
191. Ratner, supra note 24;
192. Leonard G. Ratner, Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction, 27 VILL. L. REV. 929 (1981-82);
193. Martin H. Redish & Curtis E. Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. PA. L. REV. 45 (1975);
194. Lawrence Gene Sager, The Supreme Court, 1980 Term, Foreword: Constitutional Limitations on Congress' Authority To Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17 (1981);
195. Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005-06 (1965).
196. Hart, supra note 23, at 1364-65.
197. Id.
198. Cf. Wechsler, supra note 129, at 1005-06 (rejecting Hart's proposed limitation on jurisdiction-stripping).
199. See, e.g., Luther Martin, Genuine Information, in 3 RECORDS, supra note 19, at 220-22;
200. Federal Farmer No. 15 in 2 STORING, supra note 74, at 322;
201. Brutus No. 14, in 2 STORING, supra note 74, at 432-37.
202. Brutus also foresaw judicial review of Congress's acts and condemned the principle. See Brutus Nos. 12 & 15, id. at 423-26, 437-42.
203. THE FEDERALIST No. 81 (Alexander Hamilton).
204. 3 ELLIOT'S DEBATES, supra note 74, at 519 (June 18, 1788).
205. See 2 RECORDS, supra note 19, at 432-33.
206. See id. at 648-49 (September 17, 1787) (Madison's notes).
207. See 3 ELLIOT'S DEBATES, supra note 74, at 654-55 (June 25, 1788).
208. 2 RECORDS, supra note 19, at 430 (August 27, 1787) (Madison's notes).
209. Id. at 433.
210. Id.
211. See, e.g., Luther Martin, Genuine Information, in 2 STORING, supra note 74, at 69-71;
212. Federal Farmer No. 18, in 2 STORING, supra note 74, at 346-47;
213. James Monroe, A Native of Virginia, Observations upon the Proposed Plan of Federal Government, in THE WRITINGS OF JAMES MONROE 384-87 (Stanislaus Murray Hamilton ed., 1898).
214. 2 RECORDS, supra note 19, at 431 (August 27, 1787) (Madison's notes).
215. 2 ELLIOT'S DEBATES, supra note 74, at 493-94 (Dec. 7, 1787);
216. see also id. at 517-18.
217. Id. at 494.
218. See id. at 494, 517-18.
219. 2 RECORDS, supra note 19, at 147.
220. Cf. U.S. CONST. amend. VII.
221. See Wiscart v. D'Auchy, 3 U.S. (3 Dall.) 321, 325-27 (1796) (dissenting from the Court's refusal to exercise jurisdiction over questions of fact in equity and admiralty cases);
222. see also infra Section II.E.
223. THE FEDERALIST NO. 81 (Alexander Hamilton) (first published June 25 and June 28, 1788).
224. 2 RECORDS, supra note 19, at 431 (Madison's notes).
225. Id.
226. 3 RECORDS, supra note 19, at 588 (attendance records for Hamilton); Letter from Alexander Hamilton to Rufus King (Aug. 20, 1787)
227. id. at 70.
228. Letter of Robert Yates and John Lansing to Governor Clinton, in 1 ELLIOT'S DEBATES, supra note 74, at 480-82;
229. RECORDS, supra note 19, at 588, 590 (attendance records for Lansing and Yates).
230. THE FEDERALIST NO. 80 (Alexander Hamilton) (first published June 21, 1788).
231. Hamilton, The Examination No. 6, supra note 74.
232. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 486, 487 n.24 (1969).
233. The New York convention's vote for ratification was 30-27. 2 ELLIOT'S DEBATES, supra note 74, at 413 (July 26, 1788).
234. 3 ELLIOT'S DEBATES, supra note 74, at 654-55 (June 25, 1788).
235. Id. at 653-54 (June 25, 1788).
236. See, e.g., id. at 540-41, 546 (June 20, 1788) (Patrick Henry).
237. Id. at 524-30 (June 18, 1788) (George Mason).
238. Id. at 534-35 (June 20, 1788) (James Madison).
239. Id. at 68-69 (June 6, 1788);
240. id. at 572-73, 576 (June 21, 1788) (Edmund Randolph).
241. Id. at 559-60 (June 20, 1788) (John Marshall).
242. See id. at 518-20 (June 18, 1788);
243. id. at 549 (June 20, 1788) (Edmund Pendleton).
244. Id. at 518.
245. Id. at 540-41 (June 20, 1788) (Patrick Henry).
246. U.S. CONST, amend. VII: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
247. "I think the court are to be the judges of this. The judges on the bench are to be judges of fact and law, with such exceptions, &c., as Congress shall make. Now, give me leave to ask, Is not a jury excluded absolutely? By way of illustration, were Congress to say that a jury, instead of a court, should judge the fact, will not the court be still judges of the fact consistently with this Constitution?"
248. ELLIOT'S DEBATES, supra note 74, at 528 (June 18, 1788) (George Mason).
249. Id. at 524-26, 528 (June 18, 1788) (George Mason);
250. id. at 568 (June 21, 1788) (William Grayson).
251. Id. at 540.
252. Id. Note Randolph's use of the word "organize" in his opening draft in the Committee of Detail. 2 RECORDS, supra note 19, at 147.
253. A change in the votes of two delegates would have changed the outcome in New York. 2 ELLIOT'S DEBATES, supra note 74, at 413 (July 26, 1788).
254. Amar, supra note 111, at 468.
255. See supra note 167 and accompanying text.
256. Amar, supra note 111, at 472.
257. 1 JOURNAL OF THE SENATE 10 (1789) [hereinafter SENATE JOURNAL].
258. Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 59-61, especially 60 n.27 (1923).
259. WILLIAM MACLAY, JOURNAL OF WILLIAM MACLAY, UNITED STATES SENATOR FROM PENNSYLVANIA, 1789-91, 30 (Edgar S. Maclay ed., D. Appleton & Co. 1890) (entry for May 11, 1789).
260. Warren, supra note 179, at 57.
261. 1 SENATE JOURNAL, supra note 178, at 84.
262. MACLAY, supra note 180, at 74.
263. Id. at 85 (recording Senate debate on June 22, 1789).
264. Id. at 86-87 (entry for June 23, 1789).
265. Id. at 91-92 (entry for June 29, 1789).
266. Id. at 97 (entry for July 2, 1789).
267. Id. at 101 (entry for July 7, 1789).
268. Warren, supra note 179, at 52-53.
269. 1 SENATE JOURNAL, supra note 178, at 42.
270. 1 JOURNAL OF THE HOUSE OF REPRESENTATIVES 63 (1789) [hereinafter HOUSE JOURNAL].
271. Id. at 105.
272. Id. at 109.
273. Id.
274. Id. at 110.
275. Id.
276. Id. at 110-11.
277. Id. at 112.
278. Id. at 113.
279. 1 ANNALS OF CONGRESS, supra note 74, 928-29.
280. On the insubstantial nature of the House amendments, see Warren, supra note 179, at 130 n.178.
281. Id. at 813-14 (August 24, 1789);
282. id. at 826-28 (August 29, 1789).
283. See U.S. CONST, art. UI, § 2, cl. 3;
284. U.S. CONST, amends. V, VI, VII.
285. 1 ANNALS OF CONGRESS, supra note 74, 827 (August 29, 1789).
286. Id. at 866.
287. Id. at 831-32 (August 29, 1789).
288. Id. at 835.
289. Id. at 850.
290. Id. at 854 (August 31, 1789).
291. Id. at 855.
292. Letter from James Madison to Edmund Pendleton (Sept. 14, 1789), in 4 DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800, at 511 (Maeva Marcus ed., 1992).
293. MACLAY, supra note 180, at 152.
294. 1 SENATE JOURNAL, supra note 178, at 82-83. The Journal records neither the amendments nor the committee's report.
295. 1 HOUSE JOURNAL, supra note 191, at 115;
296. ANNALS OF CONGRESS, supra note 74, at 939.
297. The amendments were minor: see Warren, supra note 179, at 130 nn. 178 & 179.
298. 1 SENATE JOURNAL, supra note 178, at 87.
299. 1 ANNALS OF CONGRESS, supra note 74, at 88-89.
300. Warren, supra note 179, at 53-54 (footnotes omitted).
301. On other negative reactions to the Act, see Holt, supra note 127, at 1517.
302. Wells & Larson, supra note 62, at 94 ("[T]he Framers had no models of a federal judicial system from which to borrow....").
303. See, e.g., Judiciary Act of 1789, 1 Stat. 73, §§ 21, 22.
304. See, e.g., id. § 9.
305. Cf. id. § 13 (purporting to confer on the Supreme Court power to issue writs of mandamus only against officers of the Union, this measure apparently constituting an exclusive "special provision by statute" for purposes of § 14).
306. 3 COMMENTARIES, supra note 58, at *110-113, *438-439.
307. Id. at *56;
308. see also id. at *55, *411, *454-55.
309. See United States v. More, 7 U.S. (3 Cranch) 159, 173 (1805);
310. see also Durousseau v. United States, 10 U.S. (6 Cranch) 307, 314 (1810) ("The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject. When the first legislature of the union proceeded to carry the third article of the constitution into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the supreme court. They have not, indeed, made these exceptions in express terms. They have not declared that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it").
311. See 1 ANNALS OF CONG., supra note 74, at 855 (Michael Jenifer Stone, Aug. 31, 1789).
312. U.S. CONST, art. I, § 4, cl. 2.
313. 19 U.S. (6 Wheat.) 264, 420 (1821).
314. See also Wisconsin v. Pelican Ins., 127 U.S. 265, 297 (1888) (contending that the Judiciary Act "was passed by the first congress assembled under the constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning").
315. 5 U.S. (1 Cranch) 137 (1803).
316. Wiscart v. D'Auchy, 3 U.S. (3 Dall.) 321, 327 (1796).
317. Id. at 326.
318. Id. at 324, 327-30.
319. Id. at 325.
320. Id. at 326-27.
321. 2 U.S. (2 Dali.) 419, 465-66 (Wilson, J.), 450-51 (Blair, J.), 469 (Cushing, J.), 476-77, 479 (Jay, C.J.) (1793).
322. Id. at 420 (submissions of Randolph, A.G., counsel of the plaintiff).
323. Id. at 432, 436-37, 449 (Iredell, J., dissenting).
324. Id. at 477 (Jay, C.J.).
325. See 2 RECORDS, supra note 19, at 97. The other members of the committee were John Rutledge and Nathaniel Gorham.
326. See Wiscart, 3 U.S. (3 Dall.) 321, 330 n.4 (noting that Paterson, J. (who had proposed the New Jersey Plan to the Philadelphia Convention and had sat with Ellsworth on the Senate committee that drafted the Judiciary Act) subsequently signaled his agreement with the Wilson view of federal jurisdiction.
327. In Jennings v. Perseverance, 3 U.S. (3 Dall.) 336, 337 (1797), Paterson observed: "Though I was silent on the occasion, I concurred in opinion with Judge Wilson upon the second rule laid down in Wiscart v. D'Auchy and, of course, the Court were divided, four to two, upon the decision.")
328. 3 U.S. (3 Dall.) 321, 327.
329. Durousseau v. United States, 10 U.S. (6 Cranch) 307, 314 (1810) (Marshall, C.J.); United States v. More, 7 U.S. (3 Cranch) 159, 173 (1805) (Marshall, C.J.) (both characterizing the Judiciary Act as an implicit exercise of a legislative power to except Article III matters from the Court's jurisdiction by omitting to provide for those matters).
330. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
331. See Exporte Yerger, 75 U.S. (8 Wall.) 85, 97 (1869) (quoted in Section III, infra);
332. Amar, supra note 111;
333. Susan Low Bloch & Maeva Marcus, John Marshall's Selective Use of History in Marbury v. Madison, 1986 Wis. L. REV. 301, 328-29;
334. Haskins & Johnson, supra note 127, at 201;
335. Louise Weinberg, Our Marbury, 89 VA. L. REV. 1235 (2003).
336. 5 U.S. (1 Cranch) at 174-75.
337. See Letter from John Marshall to Samuel Chase, Jan. 23, 1804, supra note 126;
338. ANNALS OF CONG., 1240 (1852) (listing articles of impeachment against Samuel Chase reported to the House of Representatives, March 26, 1804).
339. THE FEDERALIST NO. 81 (Alexander Hamilton) (discussing impeachment as a tool against "judiciary encroachments on the legislative authority").
340. Haskins and Johnson, supra note 127, at 185.
341. See, e.g., Letter from Thomas Jefferson to William Branch Giles (Apr. 6, 1807), excerpted in 5 DUMAS MALONE, JEFFERSON AND HIS TIME (JEFFERSON THE PRESIDENT SECOND TERM 1805-1809) 305 (1974).
342. 3 ELLIOT'S DEBATES, supra note 74, 559-60 (June 20, 1788) (John Marshall, Virginia ratifying convention).
343. See Ex parte Yerger, 75 U.S. (8 Wall.) 85, 97 (1869).
344. See also Susan Low Bloch's analysis in The Marbury Mystery: Why Did William Marbury Sue in the Supreme Court?, 18 CONST. COMMENTARY 607, 623-27 (2001).
345. See Van Alstyne, A Critical Guide to Marbury v. Madison, supra note 127, at 8.
346. Id.
347. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155, 158 (1803): It appears, from the affidavits, that in compliance with this law, a commission for William Marbury as a justice of peace for the county of Washington, was signed by John Adams, then president of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out.... The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it.
348. Haskins & Johnson, supra note 127, at 183-84.
349. 19 U.S. (6 Wheat.) 264, 392-403 (1821) (holding that Congress can expand the Supreme Court's appellate jurisdiction).
350. U.S. CONST, art. I, § 9, cl. 2.
351. See 1 RECORDS, supra note 19, at 23;
352. RECORDS, supra note 19, at 595, 599.
353. Letter of Charles Pinckney to John Quincy Adams (Dec. 30, 1818), in 3 RECORDS, supra note 19, at 427, 428.
354. Id. at 599.
355. Id. at 501-13.
356. 2 RECORDS, supra note 19, at 341 (Madison's notes).
357. Id.
358. Id.
359. Id. at 438 (Madison's notes).
360. "N.H. ay. Mas. ay. Ct ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. [Ayes-7; noes - 3.]" Id. at 438 (Madison's notes).
361. Id.
362. Luther Martin, Genuine Information, in 3 RECORDS, supra note 19, at 213.
363. "A distinct argument for the necessary availability of habeas corpus review, famously advanced by Professor Henry Hart, asserts that premises implicit in the Constitution's structure require that some court be available to determine whether the Constitution and laws create substantive rights to judicial relief from executive detention." Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 HARV. L. REV. 2029, 2039 (2007);
364. see also Hart, supra note 23, at 1372, 1390-96;
365. Timothy Endicott, Habeas Corpus and Guantánamo Bay: A view from abroad 16 (Oxford Legal Studies, Research Paper No. 6/2007), available at http://ssrn.com/abstract=982412 ("The history of the writ does not specify the jurisdiction; it gives them [the judges] a power and a responsibility to determine the extent of their own jurisdiction.");
366. cf. James E. Pfander, The Limits of Habeas Jurisdiction and the Global War on Terror, 91 CORNELL L. REV. 497, 540 (2006) (identifying statutory bases for the conclusion that "[w]hile the civil courts may choose to defer, they doubtless have the power to overturn unlawful military detention.").
367. U.S. CONST, art. II, § 2, cl. 1.
368. See Ex parte Merryman, 17 F. Cas. 144, 151-52 (1861) (Taney, C.J., citing Story, J.).
369. Cf. Fallon & Meltzer, supra note 271, at 2071 ("[T]he Suspension Clause suggests that Congress's ultimate emergency power, when faced with rebellion or invasion, is not to narrow or abolish fundamental rights but to suspend the courts' jurisdiction to enforce these rights.") (emphasis added).
370. See I.N.S. v. Saint Cyr, 533 U.S. 289, 337 (Scalia, J., dissenting) (quoting definitions of suspension that emphasize its transitory nature).
371. See, e.g., Tarble's Case, 80 U.S. (13 Wall.) 397 (1872) (holding that state laws authorizing state courts to issue the writ of habeas corpus cannot validly empower those courts to issue the writ in respect of federal detentions);
372. Charles Warren, Federal and State Court Interference, 43 HARV. L. REV. 345 (1930).
373. Cf. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2818-19 (2006) (Scalia, J., dissenting) (noting the ongoing ultimate availability of Supreme Court review in the petitioner's case).
374. See Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) ("Courts created by statute can have no jurisdiction but such as the statute confers.").
375. See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869);
376. Ex Parte Yerger, 75 U.S. (8 Wall.) 85 (1869).
377. Yerger, 75 U.S. at 102-03.
378. Id. at 97.
379. See Ex parte Bollman and Ex Parte Swartout, 8 U.S. (4 Cranch) 75 (1807);
380. Dallin H. Oaks, The "Original" Writ of Habeas Corpus in the Supreme Court, 1962 SUP. CT. REV. 153 (recognizing and discussing an appellate jurisdiction in the Supreme Court exercisable by issuing the writ of habeas corpus).
381. Cf. Fallon & Meltzer, supra note 271, at 2063 ("[W]e believe that the total preclusion of review [of challenges to conditions of confinement] in the DTA and MCA is unconstitutional because it contravenes a broader postulate of the constitutional structure of which the Suspension Clause forms part: that some court must always be open to hear an individual's claim to possess a constitutional right to judicial redress of a constitutional violation.").
382. See Redish & Woods, supra note 129.
383. U.S. CONST, amend. I.
384. See BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 524 (2002);
385. Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002).
386. See also Carol Rice Andrews, A Right of Access to Court under the Petition Clause of the First Amendment: Defining the Right, 60 OMO ST. L.J. 557 (1999).
387. SAMUEL JOHNSON, 2 DICTIONARY OF THE ENGLISH LANGUAGE 1953 (1755) (defining "supreme" as "1. Highest in dignity; highest in authority. It may be observed that superiour is used often of local elevation, but supreme only of intellectual or political ... 2. Highest; most excellent"). Among examples of usage, Johnson cited Shakespeare's Coriolanus: "My soul akes to know, when two authorities are up, Neither supreme, how soon confusion may enter 'twixt the gap of both."
388. Id.
389. 1 RECORDS, supra note 19, at 124 (Madison's notes) (June 5, 1787).
390. Id.
391. Id. at 21 (Madison's notes).
392. Id. at 95 (Journal), 104-05 (Madison's notes) (June 4, 1787).
393. The Supremacy Clause (U.S. CONST, art. VI, cl. 2) does not explicitly bind state courts to observe Supreme Court precedent, but see Cooper v. Aaron, 358 U.S. 1, 17-19 (1958).
394. Judiciary Act of 1789, § 22.
395. Judiciary Act of 1789, § 25. The Act made no provision for Supreme Court review of any court's decisions on questions of fact, and, of course, the same Congress proposed the Seventh Amendment.
396. See Pfander, supra note 30, at 1458-62.
397. Judiciary Act of 1789, §§ 13 and 14.
398. See 28 U.S.C. §§ 1254, 1257. For provenance, see the Circuit Court of Appeals Act of 1891 (the Evarts Act), 26 Stat. 826, providing for discretionary Supreme Court review on writ of certiorari regardless of amount in controversy.
399. Cf. Ratner, supra note 24, at 201 (arguing that the Exceptions power must not be used to negate the "essential constitutional functions of maintaining the uniformity and supremacy of federal law," and therefore must not preclude Supreme Court review of "every case involving a particular subject").
400. See Hart, supra note 23;
401. Ratner, supra note 24.
402. See, e.g., Carl Hülse & David D. Kirkpatrick, DeLay Says Federal Judiciary Has "Run Amok," Adding Congress Is Partly To Blame, N.Y. TIMES, Apr. 8, 2005, at A-21 ("[House majority leader] DeLay alluded to Congressional authority to 'set the parameters' of courts' jurisdictions").
403. See also the examples cited in Carl A. Auerbach, The Unconstitutionality of Congressional Proposals To Limit the Jurisdiction of Federal Courts, 47 MO. L. REV. 47 (1982);
404. Clinton, supra note 127, at 744-45 nn.4-10;
405. Sager, supra note 129, at 18 n.3.
406. United States v. Klein, 80 U.S. (13 Wall.) 128, 145-48 (1872).
407. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855-57 (1992).
408. See Choper & Yoo, supra note 2.
409. 3 U.S. (3 Dall.) 321 (1796);
410. see also section II.E., supra.
411. See supra section I.A.6.
412. 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
413. See supra Part III.